"Stroke of the pen. Law of the land. Kind of cool."-Paul Begala, former aide to President Clinton1

Article II of the United States Constitution grants the president vaguely defined "executive power." It is one of the least specific yet potentially far-reaching powers awarded to the president." Paired with Article II's requirement that presidents "take care that the laws be faithfully executed," the executive power clause provides for a range of "implied powers" with the extent and potency that, if abused, could lead our country down the path to a dictatorship.

"Implied powers" are powers incidental, or subordinate, to the president's constitutional duties as commander in chief and to the clause: "take care that the laws be faithfully executed." The power to issue executive orders is derived from these "implied powers." Executive orders are presidential proclamations or directives that have the force of law without prior congressional approval.

Orders are based on existing statutes or the president's other constitutional responsibilities." Although these orders usually pertain to government agencies and officials, their effects often reach the average citizen." Orders are primarily issued to establish executive branch agencies, to modify bureaucratic rules or actions, to change decision-making procedures or to give substance and force to statutes.2 "No constitutional basis exists for any president to legislate or make laws through executive orders.

Nor does the Constitution list specific procedures for issuing executive orders." During the first one hundred years of our country's history, orders were issued without any system of publication or recording." The numbering of executive orders began in 1907 with numbers assigned retroactively to Abraham Lincoln's presidency." Congress, in the Administrative Procedures Act of 1946, mandated that the number and text of all executive orders be published in the Federal Register, the official U.S. government record." The only exceptions are orders that pertain directly to sensitive national security matters, which are entered directly into the Register by number only.3

What began as a narrow use of executive orders under extreme national crises has grown into executive discretion bordering on dictatorial powers." This growth in executive discretion is largely due to Congress' reluctance to exercise its legislative responsibilities. Congress has delegated broad discretionary authority in the name of flexibility, effectiveness or efficiency." Because of its neglect, the president has rarely been held accountable for his orders. In the words of Justice J. Jackson in Youngstown v. Sawyer: "We may say that power to legislate · belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."4

Now, with the "stroke of the pen," an executive order effectively becomes the "law of the land." While some executive orders are appropriate uses of presidential authority, others violate the Constitution and threaten our civil liberties.

Bill Clinton has signed approximately 300 executive orders during his presidency." While some of those orders are legitimate, others are merely tools used to advance the goals of powerful special interest groups and his United Nations-inspired agenda." With the groundwork laid by his predecessors and Congress, Clinton now has an arsenal of extraordinary powers at his disposal." Virtually every issue has been reached by his use of executive orders.

Abortion." Within weeks of his January 1993 inauguration, Clinton overturned the rule that prohibited workers at federally funded clinics from counseling, advising or providing information about abortion; the ban on federal funding for fetal tissue research; and the Mexico City Policy which prohibited foreign nongovernmental organizations from providing abortion and referral services. He also directed the Department of Health and Human Services to promote the testing and licensing of RU-486, the "abortion pill."

Homosexual rights." To advance the agenda of the homosexual lobby, arguably one of his strongest supporters, Clinton signed
Executive Order 13087 on May 28, 1998, which awarded homosexuals "special protection." The order prohibits federal employers from discriminating based on sexual preference." Clinton maintained that this measure did not create any new enforcement rights but merely "provided uniform policy for the federal government to prohibit discrimination based on sexual orientation."5" Concerned Women for America (CWA) opposed this executive order, because it is not about equality under the law but about special protection based on behavior.

Most recently, Clinton signed
an executive order amending the military criminal code to add stiffer penalties for crimes motivated by hatred based on the victim's race, religion, ethnicity or sexual orientation.

The order also changed the manual on courts-martial, which regulates military trials, by adding "hate crimes" language that says sentencing authorities may cite "hate" as an aggravating circumstance." The order also creates a confidentiality privilege in criminal matters for service members' conversations with psychotherapists." The psychotherapist privilege waters down the "don't ask, don't tell" policy; it allows the men and women to confide their homosexuality to a therapist in certain circumstances without risking discharge from the service.

Through these executive orders, Clinton's goal is to change the whole military climate, which maintains homosexuality is not compatible with military service.

The United Nations agenda." In the following examples, Clinton has strategically used executive orders to advance the United Nations' (U.N.) goals." Such orders grant the U.N. excessive powers over American businesses, land and rivers, and families:

Invasive Species
Executive Order 13112." Issued in February 1999, this order prevents "invasive species" from entering public property." Tom DeWeese, president of the American Policy Center in Virginia, cautioned that alien species is defined as any species, "including seeds, egg spores or other biological material capable of propagating that species that is not native to the ecosystem [emphasis added]." Thus, alien species could be defined to include a farmer's cattle or even the family dog.6

Implementation of Human Rights Treaties
Executive Order 13107." This calls on the U.S. government to implement portions of anti-family, pro-abortion U.N. treaties to which the U.S. now is, or may become, a party.

American Heritage Rivers Initiative
Executive Order 13061." The president designated 14 rivers as federal property-part of America's heritage-to be seized by the federal government regardless of whether they run through private property." The program's estimated cost could reach $5 million, none of which has been appropriated by Congress. House Natural Resource Committee Chairman Don Young (R-Alaska) and Rep. Helen Chenoweth (R-Idaho) have filed suit to halt the initiative.7

Council on Sustainable Development
Executive Order 12852." "Sustainable development" is a U.N. buzzword meaning control over the consumption of resources like food, energy, fossil fuel, air conditioning, meat, frozen and convenience foods, suburban housing and kitchen appliances." These items are not considered "sustainable," or supportable, and federal and local programs are being set up to ensure that Americans "sustain" the environment.

During a crisis, Clinton's power grab would be most obvious."
Executive Order 12919 on National Defense Industrial Resources Preparedness and numerous other orders give the president near dictatorial control over every aspect of society in times of a "national emergency" that he, not Congress, declares." The order gives the president virtually unchecked power to implement plans and programs to control:

distribution of any product, such as food, to the public

availability of health care and medicines to Americans

marketing of gasoline and other fuels

forms of civilian transportation, including air travel

In May 1998, Clinton issued Federalism
Executive Order 13083, an attempt to repeal federalism-the constitutional principle that reserves many powers to the states rather than the central government." Clinton's order specifically revoked an earlier order of President Ronald Reagan that affirmed the federalist concept. Reagan's Executive Order 12612 restored the division of governmental responsibilities between the national government and the states. Reagan wrote: "Our political liberties are best assured by limiting the size and scope of the national government."8" He strictly adhered to this constitutional principle.

By contrast, Clinton's order blurs the lines between the national government and the states." His order declared that the federal government can usurp state powers in numerous broadly defined circumstances when, for example, "there is a need for uniform national standards; when states would be reluctant to impose necessary regulations"; and "when the matter relates to · international obligations." Adam Thierer of The Heritage Foundation said of the broad language, "These were loopholes big enough to drive a Mack truck through."9

Executive Order 13083 was one of the few edicts that evoked public opposition. Republicans sponsored congressional hearings where mayors, county commissioners, governors and members of the Democratic Party blasted the White House and Clinton for "thumbing his nose at the states."10" Faced with such backlash, Clinton withdrew the order and replaced it with another.

Executive Order 13132 is eerily similar to order 13083." Definitions and policy were strengthened, and restrictions were placed on federal agencies in the new order." But there is no challenge to the federal agencies to enact the new order's rules and regulations." They are only required to consult state officials when developing policies that have federal implications." The assault on the 10th Amendment, which prevents the federal government from usurping states' powers, remains." If this new order is allowed to stand, the states could become subject to the national government.

Needless to say, these types of actions by the president are not what the framers of the Constitution had in mind when they drafted the document." A look at history reveals how we have reached this point.

To understand the origin of executive orders, we need to examine the writings of English political philosopher John Locke." Locke strongly influenced the framers of the Constitution. Under his theory, the president should be permitted to exercise as much discretion as possible-even if it means contradicting the law-for the public good in times of dire emergencies. Locke defined this act of discretion as a "prerogative."11 "The good of society requires that several things should be left to him that has the executive power. For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. Many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands to be ordered by him as the public good and advantage shall require.12

The framers acknowledged that it would be "impossible to foresee or define the extent and variety of national exigencies · The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed."13

The constitutional framers adopted Locke's philosophy of executive discretion." However, they were mindful of the need for checks and balances on the power of the legislative, executive and judicial branches of the government." James Madison wrote, "that the risks of usurpation [of power] are guarded against by a division of the government into distinct and separate departments."14" Nonetheless, in a republican government the legislative authority "necessarily predominates."15" The Constitution reflects this deference to the legislative branch.

George Washington first used the executive order to unilaterally declare the United States neutral during the war between France and England." Washington justified his action with the argument that his constitutional responsibilities in diplomacy included the implied power to keep the United States out of war." James Madison criticized Washington's action, saying that the proclamation was invalid because only Congress could decide issues of war and peace.16"

Not until Abraham Lincoln's presidency were executive orders recorded." During the turmoil preceding the Civil War, Lincoln issued an executive order for raiding telegraph offices to seize originals and copies of telegrams." Next, he suspended the writ of habeas corpus, arresting men without probable cause or explanation." He gave funds from the U.S. Treasury Department to private citizens to enable them to purchase war supplies." He also expanded the armed forces." Congress approved these actions after they occurred because of the national emergency." Lincoln argued that since Congress was not in session, he had an inherent, or implied, power to deal with the crisis." Furthermore, he argued that he could even act illegally to preserve the Union." Congress yielded to his arguments.17

Years later, President Theodore Roosevelt argued that he had implied powers which were limited only by specific constitutional prohibitions." Roosevelt believed that the president had the duty to use these powers as a "steward of the people."18

In contrast, President William Taft argued that the president could use only those powers specifically granted to him in the Constitution or the laws." Taft believed Roosevelt's stewardship theory would result in arbitrary action during a national emergency, which would destroy private rights.19" Later uses of executive orders would prove him right." Yet, Taft held similar beliefs to Roosevelt over the use of implied powers during a crisis.

Congress delegated broad powers to Taft's successor, Woodrow Wilson, to carry out military functions to regulate the domestic economy." At the onset of World War I, Wilson signed the Trading with the Enemy Act of 1917, which allowed for regulation and censorship of all external communications." The Lever Food and Fuel Control Act of 1917 allowed him to seize defense-related facilities; to regulate food production, manufacturing and mining; and to fix prices on commodities." The Selective Service Act of 1917 allowed the president to raise an army." The Espionage Act of 1917 gave him the power to restrict exports." Congress delegated these broad powers to Wilson to allow him to carry out military functions and regulate the domestic economy." Congress also granted Wilson broad authority to monitor the actions of resident aliens, to regulate or operate transportation and communications facilities, and to reorganize executive branch agencies where necessary." In essence, Congress granted Wilson free rein to conduct the war and to maintain the domestic economy.20

Unlike Lincoln, Wilson relied heavily on Congress for official delegations of authority. Lincoln drew on his power as commander in chief; Wilson exercised emergency power on the basis of old statutes and new legislation." Yet, both Lincoln and Wilson issued wide-sweeping wartime measures." Perhaps because of Wilson's scrupulous practice of obtaining prior congressional approval, only one of his measures was challenged.21

Following the severance of diplomatic relations with Germany in early 1917, a group of senators successfully delayed a bill that authorized the arming of American merchant ships." In response, according to American historian Frank Freidel in his book Roosevelt: the Apprenticeship, Assistant Secretary of the Navy Franklin Delano Roosevelt-FDR-found an old statute allowing the president to proceed without authorization from Congress.22

Wilson's most significant executive orders were economic in nature." Just prior to the United States' entry into the war in August 1916, Congress, at Wilson's prompting, established a Council of National Defense, which had a primarily advisory function." One year later, in response to an ineffective economic mobilization, Republicans in Congress demanded a coalition War Cabinet similar to that in England." Wilson stalled Congress by proposing legislation that delegated to him almost total economic power and, even before legislative approval, authorized the War Industries Board to exercise extensive powers." Subsequently, Congress enacted Wilson's measure, the Overman Act, in April 1918.23

Following the Allied victory, Wilson relinquished his wartime authority and asked Congress to repeal the emergency statutes that were enacted to fight the war more effectively. Only a food-control measure and the 1917 Trading With the Enemy Act were retained.24" It is crucial to note that Wilson's successors have not consistently followed his example of terminating emergency powers when the particular emergency ended.

FDR's use of executive emergency powers was a turning point for the United States' presidency." The Great Depression confronted him upon his inauguration, and FDR immediately began using his implied powers." In response to the Depression, he declared a national emergency and closed the banks by proclaiming a National Bank Holiday, basing this action on the 1917 Trading with the Enemy Act.25" Unlike previous emergencies, this one posed a nonmilitary threat." The Trading With the Enemy Act was specifically designed for wartime emergencies." Roosevelt's use of this statute greatly expanded the definition of emergencies." He likened the calamity of the Depression to war and used wartime measures." Congress supported him unanimously.26

Roosevelt insisted that he was using "limited emergency" powers." He acted without statutory authority in concluding his 1940 Bases for Destroyers Deal, which gave obsolete destroyers to England in exchange for military defense bases in the Atlantic Ocean." This act violated the Neutrality Act.27" Moreover, he convoyed war materials to England, disposed of surplus war materials and engaged in naval operations in the North Atlantic that resulted in military engagements with Germany before war was declared." He also ordered the seizure of several defense plants." Roosevelt relied on his commander-in-chief powers to undertake all of these actions.28

Roosevelt openly expressed his interpretation of inherent emergency powers in a speech before Congress on September 7, 1942, when he requested repeal of the Emergency Price Control Act." Roosevelt told Congress that the president had inherent powers to take any measures necessary to win the war-even implicitly repealing a law by non-enforcement should Congress fail to repeal it.29" The speech was a pure expression of Locke's prerogative theory of the president's authority to act in violation of the law for the public good.30" Roosevelt linked his power to a trust he received from the people, which led to his duty to defend the country." But Roosevelt stated that when the crisis was over, "the powers under which I act automatically revert to the people-to whom they belong."31

Roosevelt's successor Harry S. Truman further expanded the concept of a national emergency." Truman put the nation on emergency war footing in 1950 with the invasion of North Korea." In late 1951, he ordered the seizure of strike-threatened steel mills to avoid potential shortages, though Congress had not officially declared a war." Truman based his action "on the authority vested in me by the Constitution and laws of the United States and as President of the United States and Commander-in-Chief of the armed forces of the United States."32

Congress did not respond, but the U.S. Supreme Court did. In Youngstown, the court held the seizure of the steel mills to be unconstitutional." It reasoned that in the 1947 Taft-Hartley Labor Act Congress had decided not to give presidents the right to take over industrial facilities shut down by strikes.33" Further, the majority implied that the president did not possess inherent powers in times of emergency, nor did the commander-in-chief role grant special domestic powers.34

Although the Korean War ended, Congress did not terminate the state of emergency. From 1933 until 1975, the United States lived in a perpetual state of emergency." Truman terminated Roosevelt's pre-World War II emergencies (declared in 1939 and 1941) that granted the president greater discretion to direct defense preparations, organize the executive branch and mobilize the nation for potential hostilities." But four other states of emergency remained as of 1975: Roosevelt's bank emergency (1933), Truman's mobilization following the invasion of North Korea (1950), Nixon's use of troops to maintain mail deliveries (1970), and Nixon's response to international economic conditions (1970).35

Congress neither specified a termination date for these emergencies nor wrote statute provisions for terminating the president's emergency authority." Emergency declarations are usually drafted in the White House and rushed through Congress." What is so disturbing is that these unexpired states of emergency gave the president the technical authority to invoke a wide range of emergency powers, even if no crisis seemed imminent.36" For example, on August 15, 1971, Richard Nixon issued a proclamation to impose stringent import controls because of an international monetary crisis." This contained general language that could have served as sufficient authority to use a substantial proportion of all emergency statutes then on the books.37 These powers included the right to seize private property and regulate private enterprise, to organize and control all means of production and transportation, to call up reservists and assign military forces overseas, to institute martial law and to restrict travel.38

From 1933 until 1975, the United States lived in a perpetual state of emergency."

Disturbed by this, the Senate created the Special Committee on the Termination of the National Emergency in 1973." This committee's task was to examine the consequences of terminating the declared states of national emergency; to recommend steps for Congress to take to ensure the termination could be accomplished without adverse effects upon the necessary tasks of governing; and to recommend ways in which the United States could meet future emergency situations with efficiency but without loss of congressional oversight and control.39

The committee drew a number of conclusions from its study and analyses of emergency laws:

It showed a pattern in which Congress, through its own inaction, transferred extraordinary powers to the president ostensibly to govern effectively in times of great crisis.

Since 1933, Congress had passed or re-codified over 470 significant statutes that delegated to the president powers that had been the prerogative and responsibility of the Congress since the establishment of the Republic.

The charge could not be sustained that the executive branch usurped powers belonging to the legislature, because the transfer of power had been in accord with due process of normal legislative procedures.

Congress had in the most important respects, except for the final action of floor debate and formal passage of bills, permitted the executive branch to draft and, in large measure, "make the laws." This had occurred despite the constitutional responsibility conferred on Congress by Article I Section 8 of the Constitution which states that it is Congress that "makes all Laws ·"

Most of the statutes pertaining to emergency powers were passed in times of extreme crisis. Bills drafted in the executive branch were sent to Congress by the president." The most significant laws that were on the books were those legislated by the executive branch." They were approved with only the most perfunctory committee review." Virtually no consideration took place of their impact on civil liberties or the structure of the government of divided powers.40

The report further concluded that very few senators and representatives objected to Congress' neglect of its duties." These conclusions echoed Justice Jackson's admonition about Congress "preventing power from slipping through its fingers."

As a result of the committee's findings, and during a period when efforts were made to rein in the "imperial presidency,"41 Congress passed the National Emergencies Act (NEA) which terminated, as of 1978, the states of emergency still in effect." The law also established procedures for declaring and terminating future states of emergency." The provisions of the NEA were intended to force Congress and the president, acting independently or together, to ensure that any state of emergency does not outlive the conditions upon which it was based.42

Under NEA, the president cannot lawfully declare a state of national emergency without also specifying the provisions of existing law or the Constitution under which the proposed action falls." Furthermore, any proclamation of a national emergency must be transmitted immediately to Congress and published in the Federal Register.

In addition, during a national emergency, the president and all relevant executive branch agencies or departments must maintain files on all rules, regulations, executive orders or any other activities carried out to address the emergency." All of this must be promptly provided to Congress.

The law also specifies how the order is to be terminated, either by the president or Congress." The two houses of Congress must, by law, meet to consider a concurrent resolution to determine whether the emergency should be terminated no later than six months after an emergency is declared." Should Congress be unable or unwilling to terminate the emergency, it must consider another resolution within the next six-month period." The president can terminate unilaterally any declared state of emergency when it is deemed that the conditions meriting the emergency have passed." And to avoid another perpetual state of emergency, the law calls for automatic termination of an emergency upon the anniversary of its declaration, unless the president previously notifies Congress (and publishes in the Federal Register) of the need to continue the emergency.

Yet, despite its good intentions, NEA is not without flaws.

First, it is unclear as to who actually declares a state of emergency-Congress or the president.

Second, it does not specify what constitutes an emergency nor does it provide criteria by which to direct the president in declaring states of emergency." Therefore, the president can declare anything as a national emergency." When he does, the president can use all 470 emergency statutes." Severe laws could potentially be enacted during a relatively minor crisis.

Third, the NEA contains vague words." The president can interpret them as he sees fit, thereby arbitrarily using the statutes.

Fourth, although the president is required to publish executive orders in the Register, he has a loophole in that only a number may be used to register those orders that pertain to sensitive matters, such as national security." Therefore, he may record "secret" orders under the guise of "sensitive matters."

Fifth, even though the Act contains an automatic termination provision, in actuality the emergency terminates whenever the president says it does.

In 1977, Congress amended the 1917 Trading with the Enemy Act." By doing so, it curbed executive authority to impose economic controls during states of emergency." It narrowed the act's broader authority to wartime." The amended law also defined economic controls that presidents could employ without calling a state of national emergency, including the ability to regulate foreign currency transactions, to institute embargoes against other nations, and to freeze foreign assets.43

Clinton's orders and those of his predecessors threaten our freedom." For the most part, Congress has been lax in exercising its constitutional responsibility." It has acted as nothing more than a rubber stamp for presidential edicts." DeWeese
has warned
that congressional inaction "literally will establish the Clinton administration as a dictatorship, immune to checks and balances so brilliantly provided by the Constitution."44"
Rep. John Metcalf
(R-Washington) attributes the timidity to "a combination of Republican skittishness over confrontation and an uncritical acceptance of presidential authority in areas where it properly resides with the Congress."45 """

There is hope. Rep. Metcalf and Rep. Ron Paul (R-Texas) have proposed legislation called the Separation of Powers Restoration Act (H.R. 2655)." The bill would restore the proper division of power within the branches of government, thereby preventing further executive abuse. It would terminate existing states of emergency and grant Congress the exclusive authority to make such declarations.

The bill would require the president to issue orders based only on statutory and constitutional authority. The orders would not have the effect of law and would be limited in application and effect to the executive branch. Finally, the bill would permit members of Congress, state and local governments, and people whose liberty or property interest has been adversely affected to sue in court to stop an order's enforcement.

"The American public has grown increasingly weary of the use of executive orders," says Rep. Paul. "Presidents must be able to direct their employees, but this power must be closely confined by the laws which they are constitutionally and legislatively empowered to execute."46

Congress must either abolish or amend the National Emergencies Act of 1976." It must hold the president accountable for his actions." Ultimately, we must all step up to the plate." "If we are to be saved from the autocracy that follows [the abuse of presidential power], Congress, the states and the courts must perform their duties under our system of divided and separated powers," said William J. Olsen and Alan Woll.47" Otherwise, in the words of Rep. Roscoe Bartlett (R-Maryland), "We'll need another revolution."48""""

Staff of Senate Special Comm. on the Termination of the National Emergency, 93rd" Cong., 1st Sess., "Report on Emergency Powers Statutes: Provisions of Federal Law Now In Effect Delegating To The Executive Extraordinary Authority In Time of National Emergency" (Comm. Print 1973).

Report on Emergency Powers 3.

Report on Emergency Powers 4.

Ibid.

Presidential Proclamation No. 2039.

Report on Emergency Powers 4-5.

Neutrality Act of 1939, J. Res. No. 54 s. 7(a), 54 Stat. 4 (codified at 22 U.S.C. s.447(a) (1976). Note, however, that Art. IV, sec. 3, cl. 2" of" the" U.S. Constitution states: "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ·"